Review of the International Criminal Court
In 2019, the Bureau of the Assembly of States Parties (ASP) began a process to open a formal review, including with independent experts, of the International Criminal Court due to concerns over the performance of the prosecution and judiciary, as well as broader structural issues at the court. This page follows the developments of the review process and offers related commentary.
The International Criminal Court (ICC), which was founded in 1998 and began its operations in 2002, is a key actor in the broader system of international accountability for grave crimes that encompasses national judiciaries, hybrid and ad hoc courts, international investigative mechanisms and other institutions. Amongst these other bodies the ICC looms large in the global imagination and in the hopes of civil society and atrocity victims the world over. It is a court of last resort that is meant to encourage accountability for grave crimes at the national level while also backstopping the failures of domestic justice systems.
However, the court has struggled to fulfil its ambitious mandate and has faced mounting criticism, even from its closest supporters. Civil society organizations have raised concerns over the years about the court’s failure to meet expectations due to insufficient understanding of the field and the lack of consideration for victims’ priorities. Poor quality investigations and prosecutions, controversial decisions, institutional infighting, and a lack of accountability for poor performance have compounded mounting external problems, including a lack of state cooperation and political backlash from powerful states, notably the United States. By early 2019, it became clear that the broad sense of crisis had created a potential opportunity for reform through a number of measures, including an independent assessment by international experts. The ICC will undergo a significant change of leadership in the beginning of 2021, making it an ideal opportunity to identify needed improvement.
Independent Expert Review of the ICC
On December 6, 2019, after several months of negotiations, the Assembly of States Parties (ASP) to the ICC passed a resolution, by consensus, on the Review of the International Criminal Court and the Rome Statute System. Specifically, the ASP was “[g]ravely concerned by the multifaceted challenges” faced by the court in ending impunity and preventing crimes. The resolution further commissioned an independent expert review of the court that will make “concrete, achievable and actionable recommendations aimed at enhancing the performance, efficiency and effectiveness of the Court and the Rome Statute system.”
The terms of reference included in the resolution divide the independent expert review into three clusters of work: governance; judiciary; and prosecution and investigation. Each cluster has three experts appointed to it, who are expected to consult with relevant stakeholders, including civil society, in the course of their work. The experts will submit a comprehensive report including recommendations to the ASP and the court at the conclusion of their work. According to the terms of reference, the report will be public, “subject to appropriate confidentiality measures.” It is also expected that the ASP will consider the experts’ recommendations and decide on next steps at its nineteenth session in December 2020.
Other Areas of Review by States Parties and the Court
In addition to the Independent Expert Review, the ASP resolution also highlights other avenues through which the states parties and the court itself can work to strengthen the ICC and improve its performance, together with other relevant stakeholders. The Bureau of the ASP developed a “Matrix over possible areas of strengthening the Court and Rome Statute system” as a starting point for a comprehensive dialogue. The matrix provides a list of “concrete and actionable issues” and is a considered a living document intended to be used to facilitate discussions on areas of review.
The matrix’s three broad categories of issues for review are: governance, management, and leadership; investigations, prosecutions, and the judicial process; and the external environment. While the Independent External Review is mandated to cover some issues, the Bureau working groups and facilitations are addressing other areas identified for review. The ASP resolution noted four priority areas for the Bureau and its working groups to handle in 2020: strengthening cooperation; non-cooperation; complementarity and the relationship between national jurisdictions and the court; and equitable geographical representation and gender balance.
Under the governance, management, and leadership category, the Bureau and states parties will exclusively address two issues: the election of judges and the election of the prosecutor. For example, in order to “ensure the highest quality of nomination and election of judges” the matrix outlines several actions, including strengthening the mandate of the Advisory Committee on Nominations. Accordingly, the ASP passed a resolution specifically addressing that issue in December 2019. The matrix also encourages actions to strengthen national nomination processes in order to secure the most qualified judges to the ICC bench.
Assembly of States Parties (ASP): The management oversight and legislative body of the International Criminal Court. It is composed of representatives of the countries that have ratified and acceded to the Rome Statute.
Bureau of the ASP: The Bureau of the ASP consists of a president, two vice-presidents (one based in New York and one based in The Hague), and 18 member states elected by the ASP for three-year terms. The current composition of members can be found here. The Bureau assists the ASP in the discharge of its responsibilities, and holds intersessional discussions with States Parties through two working groups, one based in New York and one based in The Hague (the New York Working Group, and the Hague Working Group).
Presidency of the ASP: Composed of the president of the ASP and two vice-presidents, all of whom are elected by the states parties, along with other members of the Bureau.
President of the ASP: A state representative who holds several functions, including: presiding over the Bureau; declaring the opening and closing of each plenary meeting of the ASP session; directing the discussions in plenary meetings; and ensuring observance of the rules of procedure of the ASP among other responsibilities. The current president of the ASP is O-Gon Kwon, a national of South Korea and former judge at the International Criminal Tribunal for the Former Yugoslavia.
Advisory Committee on Nominations of Judges: An independent body of the ASP tasked with assessing the experience and qualifications of the persons seeking to serve as judges at the International Criminal Court. It is composed of nine members, who are nationals of states parties to the court, and makes formal recommendations in the months leading up to the elections.
Presidency of the International Criminal Court: The organ responsible for the proper administration of the court, which oversees the activities of the Registry and organizes the work of the judicial divisions. The presidency of the ICC comprises the president and the first and second vice-presidents — three judges of the court who are elected to the Presidency by their fellow judges for a maximum of two three-year terms.
President of the International Criminal Court:The officer who is the leader of the Presidency of the ICC. The current president of the ICC is Judge Chile Oboe-Osuji, who was elected by judges to a three-year term in March 2018.
Prosecutor of the ICC: The officer of the court whose duties include the investigation and prosecution of the crimes under the jurisdiction of the Rome Statute of the ICC. The current prosecutor is Fatou Bensouda, who was elected by consensus to a nine-year term that started in June 2012.
Registrar of the ICC: An officer of the court responsible for the oversight of the Registry, which is a neutral organ providing services to all other organs of the court. Judges elected the current Registrar, Peter Lewis, to a five-year term in April 2018.
Group of Independent Experts: The individuals appointed by the ASP to undertake an independent review of the court pursuant to a mandate set out in the resolution passed in December 2019 on the review of the ICC. Under the ToR, the experts are mandated to make recommendations to the ASP under three clusters of issues.
Experts under the Governance Cluster: Individuals appointed to review the governance framework and inter-organ coordination and cooperation, as well as management policies and leadership culture of the ICC. The three appointed experts are: Nicolas Guillou (France); Mónica Pinto (Argentina); and Mike Smith (Australia).
Experts under the Judiciary Cluster: Individuals appointed to review the structure, organization, management, staffing, and working methods of the judiciary of the ICC. The three appointed experts are: Anna Bednarek (Poland); Iain Bonomy (U.K.); and Mohamed Chande Othman (Tanzania).
Experts under the Prosecution and Investigation Cluster: Individuals appointed to review the structure, organization, management, staffing, and working methods of the Office of the Prosecutor. The three appointed individuals are: Richard Goldstone (South Africa); Hassan Jallow (The Gambia); and Cristina Romano (Brazil).
April 24, 2019
Four former presidents of the Assembly of States Parties (ASP) write an op-ed stating that “an independent assessment of the Court’s functioning by a small group of international experts is badly needed.”
May 10, 2019
The president of the International Criminal Court, on behalf of the heads of all organs of the court, calls for an independent, comprehensive expert review of the court’s performance.
June 13, 2019
The Bureau of the ASP holds a retreat in which several areas for review are identified. As a result, the Bureau authorizes the ASP Presidency to prepare a draft “matrix or roadmap” to identify issues to be considered and by whom.
July 15, 2019
A draft non-paper entitled “Matrix over possible areas of strengthening the Court and the Rome Statute System” is sent to all states parties, the court, and civil society. (The matrix was subsequently updated in response to comments, and is available here). The ASP Presidency says the matrix is an attempt “to distil a number of concrete and actionable issues based predominantly on informal discussions” that took place at the June 13, 2019 retreat of the Bureau.
September 12, 2019
The Presidency of the ASP prepares a draft “Terms of Reference for the Independent Expert Review of the Court” (ToR). The draft ToR sets out the areas of focus for the independent review, profiles experts should have, role of the ASP Presidency in coordinating the review, and financing options. The draft ToR and a resolution will be negotiated in the months leading up to the 18th session of the ASP.
December 2 – 6, 2019
The eighteenth session of the Assembly of States Parties is held in The Hague. At the conclusion of the session, the ASP adopts by consensus the resolution on the review of the International Criminal Court and the Rome Statute system. The resolution includes the ToR for the independent expert review and list of issues to be covered in the review process.
Independent expert prepare and organize work.
The Bureau of the ASP, through its working groups, addresses aspects of the review that are not covered by the independent expert assessment.
February – March 2020
Independent experts consult with States Parties, ICC officials, and civil society.
April – August 2020
Independent experts analyze information gathered and draft reports.
June – July 2020
Independent experts present their interim report or briefing to States Parties.
Independent experts submit final report to the Bureau and ASP.
December 7-17, 2020
The ASP holds its nineteenth session, where it considers reports from the independent experts and the Bureau, and decides on the way forward. The ASP also elects a new prosecutor, six new judges, and a new Bureau at this session.